A Superior Approach to
Banning Abortions

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Overview and Strategy Explanation

In 2004, a bill was introduced in the South Dakota legislature to ban abortion based on "new" medical evidence that life begins at conception. In a subsequent amendment, the bill also addressed the fact that abortion involves significant health risks to women but failed other legal and political problems itemized below.

The effort to expose physicians who perform abortions to criminal penalty would be instantly enjoined, exposing the State to costs of litigation without any immediate impact on abortion practices.

The exception allowing abortion to save a woman's life would be interpreted by the courts, as in the cases leading up to Roe, as evidence that the State actually does place higher value on the life of adult women than on their unborn children

There is often uncertainty regarding when abortion may be necessary to save a woman's life rendering any exception vague. Furthermore, as in pre-Roe days, the psychiatric exception based on the claim a woman's life was at risk since she might otherwise attempt suicide, could still be employed to gain access to a legal abortion.

Significant political issues are raised about whether or not to grant additional exceptions, as for example, in cases of rape and incest. Exceptions for abortion in these cases are widely supported by the public despite evidence that they are actually contraindicated since they provide no proven benefits to sexual assault victims and are instead linked with increasing traumatic reactions in sexual assault victims.

The ban offered no solutions to the problem that restricted access to medical abortions might result in widespread injuries resulting from illegal abortions.

The model legislation proposed below offers unique solutions to these problems and several additional advantages. On a political level, this proposed bill would reduce legislators' fears about "going too far" in banning abortions because it provides a wide exemption from criminal prosecution for physicians since the primary enforcement mechanism is via civil liability. In addition, this bill also reduces the risk that the State will be faced with major legal bills to defend the legislation, as will be discussed below.  Most importantly, however, on a practical level this bill would lead to a real, immediate, dramatic reduction in abortion rates..  

Below is a quick summary of the key features of this revised version of the bill. The overarching strategy, which can be summed up as:

"All abortions are illegal. But abortions done in good faith by a physician to restore a woman's health are exempt from prosecution, provided however that physicians are fully exposed to civil liability for any abortions that are unnecessary or unsafe."

Additional explanatory notes are included as endnotes. Statute reference numbers refer to South Dakota statutes.

The first seven sections lays out the findings of fact. Sections 1 & 3, which are drawn from the original ban introduced in South Dakota, may not be necessary but all the other sections are essential.

Section 8 defines all knowingly abortifacient acts as illegal, but excludes women and those providing medical treatments, as defined further defined in Section 9, from prosecution.

Section 9 provides a wide exemption from prosecution for medical treatments "intended in good faith to restore or protect a woman's health." This provision is wide enough to handle all concerns about allowing exceptions for rape and incest, etc, without explicitly legalizing such abortions and while still exposing the abortionists to the proper liability. (In fact, such abortions are contraindicated but it is better to contest this fact in civil courts rather than state legislatures.)

Most importantly, following the reasoning employed in Okpalobi v_ Foster, 244 F_3d 405 (5th Cir_2001), section 9 should be sufficient to deny abortionists standing to block the law since the enforcement mechanism does not expose doctors who are acting in good faith to the risk of prosecution or loss of license. In other words, abortionists have no standing against the State since the State is not posing any threat to them. Instead, the enforcement mechanism for protecting women and their children is based in civil liability--individuals acting against the abortionist rather than the State. For these reasons, as proven in Okpalobi, the law is unlikely to be enjoined for a lengthy period of time and can go quickly into effect. This fact also reduces the risk that the State will be faced with any substantial legal costs in defending the statute. Moreover, as explained later, by tolling the liability statute, even if enjoined abortionists will face full liability risks for abortions done during the time the statute is enjoined.

It should be noted that in sections 8 and 9, we are following the reasoning of Germany's highest court. WWII the German constitution was drafted with very expansive protections of the right to life and human dignity, from the moment of conception. These constitutional safeguards are even more expansive than those put forward in proposed Human Life Amendments in the United States. Because of these constitutional provisions, when efforts were made to legalize abortion in Germany, the German High Court struck them down. It concluded that German law cannot explicitly allow for any abortions. Taking the life of even an unborn human embryo cannot be sanctioned by the German government. On the other hand, the High Court reasoned, the constitution was silent about the degree of duty the State had to prevent abortions. Therefore, while all abortions in Germany are technically illegal, as a matter of public policy the State does not prosecute abortions prior to the first trimester, with additional exemptions from prosecution later in pregnancy for other medical reasons.

To avoid ending up in exactly the same position, the model bill we are proposing uses civil liability as a means of preventing abortions that are not medically justified ­ which is virtually all of them.

Sections 10 defines the standard of care regarding negligence for a physician who performs an abortion without adequate medical justification. In short, this section would finally expose abortionists to full and properly liability for unnecessary and unsafe abortions. As noted previously, this section would have an IMMEDIATE impact on the practice of abortion in South Dakota since the statute of limitations would be tolled during any injunctions. Anyone ignoring the screening standards, for example, would, by definition, have injured women by act of negligence.

Sections 11 and 12 create a cause of action for women to sue anyone who performs an illegal abortion or abets a self-abortion. These sections are very important to address the Supreme Court's concern that tighter access to medical abortions will lead to a blood bath of back alley abortions. These sections show that the State has thought through this risk and found a workable solution. Civil liability, backed with criminal liability, provides a huge deterrent against illegal abortions performed by non-physicians and against promotion of self-abortion kits, which feminists have promised to do.

We believe passage of this bill, at this time, is especially important given the Rule 60 motions currently in process regarding Norma McCorvey (before the Fifth Circuit Appellate Court) and Sandra Cano. It does two things: (1) it reinforces the findings of fact at issue and (2) it shows the courts how the questions regarding abortion to protect the life or health of the mother, preventing illegal abortions, etc can be successfully addressed by the State. The latter may be especially important as the courts, as always in such cases, will be deeply concerned about the public policy implications, not just the legal implications, of their ruling.

Would this law survive judicial review?

Yes. First, abortionists will have no standing to enjoin the bill. See Okpalobi v_ Foster.

Second, the new evidence linking abortion to negative health effects on women is overwhelming., particularly for those women with risk factors. Even pro-abortion Justices will be hard pressed to deny that abortionists should be held more accountable for ensuring that any abortions they perform are more likely to benefit women than hurt them.

Perhaps the best way of measuring how the Court will react is to look at this bill through the eyes of one of the key swing votes, Justice Sandra Day O'Connor. Abortion advocates criticize O'Connor for never seeing an abortion regulation she didn't like, while pro-lifers criticize her for not being willing to completely repudiate Roe, even though she admits that Roe was ill conceived.

But O'Connor sees herself as a pragmatist. She won't risk throwing out Roe if it will just drive women who have become accustomed to easy access to abortion into seeking dangerous, illegal abortions. This is why our providing a solution to the problem of illegal abortions is so important.

Moreover, O'Connor, would love to see abortion go away, if (1) it can be done in a way that doesn't hurt women, and preferably (2) it can be done in a way that doesn't damage the credibility of the Supreme Court which brought us down this path through its activist rulings.

Our bill passes both these tests because it uses civil liability to shut the door to back alley abortions while retaining an exclusion from prosecution acting in good faith to preserve the life and health of their patients. This was a core concept in Roe that has some slim basis in truth (for example, in cases of ectopic pregnancy) but was distorted completely out of shape to allow abortion on whim.

The solution of heightened civil liability, moreover, is recognized within Roe itself as the best way to stop physicians from performing unnecessary, unjustified, or unsafe abortions. To quote Roe, "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."

In other words, our bill provides the Court with a way to reverse the effects of Roe, unregulated abortion, without completely overturning the concept that physicians should not be subject to criminal prosecution when they are acting to save the life of a patient. Civil liability is a better means for bringing an end to abortion precisely because we are not solely reliant on the zeal of local prosecutors. At the same time, this bill also corrects the moral stance of the State toward even therapeutic abortions. Rather than declaring life saving abortions to be legal acts, the State can and should simply refrain from prosecution in these morally complex and difficult cases.

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Illegal Abortion and Woman's Health Protection Act

FOR AN ACT ENTITLED, The Illegal Abortion and Women's Health Protection Act, to establish certain legislative findings, to prohibit acts resulting in the intentional death of human beings and other unintended injuries to pregnant women, to define certain acts of medical negligence, and to prevent illegal abortions.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

     Section  1.  The Legislature finds that the State of South Dakota has a compelling and paramount interest in the preservation and protection of all human life within and subject to its jurisdiction and that the preservation and protection of human life applies to all human beings, born or unborn.

     Section  2.  The Legislature finds that since neither constitutional law nor Supreme Court decision has resolved the question of the beginning of life, it is within the proper sphere of state legislative enactment to determine the question of fact in light of the best scientific and medical evidence. The Legislature finds, as a matter of scientific fact, that fertilization of human ovum by a human sperm marks the beginning of life of a new, distinct human being.⁽¹⁾ It further finds that the lives of new human beings may also begin at the moment of monozygotic twinning or when artificial techniques are employed that result in cell division of totipotent cells that are substantially indistinguishable by experts in human embryology from sexually produced human life.

    Section 3. The Legislature finds that the guarantee of due process of law under the South Dakota Bill of Rights applies equally to born and unborn human beings and that there is no justification for the taking of a guiltless human being by the state or by any person within and subject to the jurisdiction of the state.

     Section  4.  The Legislature finds that the State has a duty and compelling interest in protecting the pregnant mother's fundamental interest in her relationship with her children, born or unborn, and in order to discharge that duty, it is the proper exercise of the State's power to prohibit the waiver of a mother's rights to a relationship with any or all of her children prior to birth.⁽²⁾

    Section 5. The Legislature finds that record based studies have established the fact that women who have abortions, even in the first trimester, are exposed to a significantly higher risk of death than pregnant women who are not exposed to induced abortions, and that this fact establishes a compelling State interest in regulating or proscribing abortion at all stages of pregnancy.⁽³⁾

     Section 6.  The Legislature finds as a matter of scientific fact that induced abortion, at any stage of pregnancy, involves significant and inherent risks to the physical, psychological, and socioeconomic well-being of pregnant women, their families, and to children they will subsequently bear, and that these risks are greater than the risks associated with uninterrupted pregnancies. The Legislature further finds that even after many years of extensive experience with induced abortion, well controlled, statistically validated studies have not yet documented that induced abortion, generally produces statistically significant benefits to women in general, or even for certain classes of women. After comparing the claims of benefits from abortion, including anecdotal claims, to the medically documented risks of abortion enumerated in the Committee report included in the legislative record, the Legislature finds as a question of fact that the preponderance of medical evidence shows that the known risks of abortion to women, their families, and children yet to be born, exceed the known, or any reasonably hoped for benefits, of induced abortion.⁽⁴⁾

    Section 7. The Legislature finds that pregnant women seeking abortions are generally faced with pressures from circumstance and other persons that creates an emotional crisis surrounding her pregnancy, and that emotional crisis can contribute to some women becoming over reliant on the advice of others, can cloud some women's judgment, can lead to despair and a willingness to violate a woman's own conscience and even to sacrifice her maternal love for her unborn child for the sake of being released from this crisis of pressures. The Legislature finds that the preponderance of evidence regarding the nature such pressures creates a presumption of reduced capacity to give free and fully informed consent to an abortion, and that primary responsibility for preventing unnecessary and unsafe abortions must rest on women's physicians.⁽⁵⁾

    Section 8. That chapter 22-17⁽⁶⁾ be amended by adding thereto a NEW SECTION to read as follows:

        No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure with the intent of causing or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony, except for the exemptions from prosecution for medical treatments provided in Section 9, and provided that the pregnant mother upon whom an abortion is performed or attempted shall not be subject to criminal prosecution or penalties for any violation of this section or other sections regarding homicide or wrongful death.    

     Section 9.  That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No licensed physician shall be subject to criminal prosecution for violating section 8 of this Act when the death of the unborn human being occurs concurrent to a medical treatment intended in good faith to restore or protect a woman's health.⁽⁷⁾ An exemption from criminal prosecution for medical treatments resulting in the death of a human being shall not be construed as a determination that the exempted acts are in fact legal acts.

    Section 10.  That chapter 34-23A ⁽⁸⁾ be amended by adding thereto a NEW SECTION to read as follows:

Except in the case of a medical emergency, in addition to whatever requirements exist under the common or statutory law of this state, it is an act of medical negligence to recommend or perform an abortion unless all of the following are true:

(1) A qualified person has evaluated the woman to identify the presence of all statistically significant risk factors for abortion complications;⁽⁹⁾

(2) The physician recommending or performing the abortion has in good faith formed a reasonable medical judgment, documented in the permanent record, that the abortion is medically necessary to prevent

a) the imminent death or serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman,

b). other serious health risks arising directly from the pregnancy itself, provided that the physician has reasonably determined and documented that the preponderance of reasonable statistically validated medical studies demonstrate that the continuance of pregnancy, in such a circumstance and for such a patient, is likely to involve an injuries to the health of the pregnant woman, excluding any associated with raising a child, that significantly exceed the combined physical, psychological, familial, and behavioral risks associated with abortion.

(3) The physician has made a good faith effort to ensure that there are no other available options that can lessen the health risks associated with continuing the pregnancy to a degree less than the health risks associated with an induced abortion.

Any action for civil remedies based on a failure to comply with the requirements of this act must be brought no later than the longer of four (4) years after the abortion, or two (2) years after the date woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complications which may impede the woman's ability to pursue a civil remedy.⁽¹⁰⁾ Any intentional, knowing, or negligent violation of this act shall be admissible in a civil suit as prima facie evidence of gross medical negligence and shall entitle the woman or her survivors to actual damages or Ten Thousand Dollars ($10,000.00) for each violation, at her option, plus punitive damages and reasonable attorney's fees and costs.

    Section 11. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

In addition to whatever remedies are available under the common or statutory law of this state, in the event that an abortion is attempted or completed by a person who is not a licensed physician, the woman upon whom the abortion was attempted or completed, or her survivors, will have a cause of action against said person. Upon establishing by the preponderance of evidence, that said person was not a licensed physician and attempted or completed an abortion on the woman, the plaintiff shall be awarded not less than Eight Hundred Thousand Dollars ($800,000) for reckless endangerment and wrongful death. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.

    Section 12. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

In addition to whatever remedies are available under the common or statutory law of this state, a woman, or her survivors, who attempted or completed a self-abortion except as prescribed by a physician, will have a cause of action for reckless endangerment and wrongful death against any person who provided, distributed, or sold medical advice to her with the intent to assist or encourage her in performing a self-induced abortion. Upon establishing as a finding of fact or by a preponderance of evidence that a defendant who is not a physician provided, distributed, or sold medical advice with the intent to assist others to perform illegal or self-induced abortions, plaintiff shall be awarded not less than Four Hundred Thousand Dollars ($400,000) for reckless endangerment and wrongful death. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.

    Section  13.  That chapter 34-23A be amended by adding thereto a NEW SECTION to read as follows:

Terms used in this Act mean:

"Qualified person" means a licensed physician or an agent of the abortion provider who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.

"Risk factor" means any physical, psychological, behavioral, or situational factor for which there is a statistically significant association to a higher incidence of adverse emotional, psychological, behavioral, familial or physical reactions as compared to individuals who do not possess that risk factor.

"Statistically significant," "significant," and "significantly," means statistically tested results, published in one or more peer reviewed scientific journals, wherein there is less than a five percent chance that the observed association between variables is due to chance variations in the selection of the sample/population studied, which equates to the probability statement: P<0.05.

    Section 14.  That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Terms used in this Act mean:

"Pregnant," means the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;

"Human being" is an individual living member of the species homo sapiens. The life of the individual human being normally begins at fertilization, but may also begin at the moment of monozygotic twinning or when artificial techniques are employed that result in cell division of totipotent cells that are substantially indistinguishable by experts in human embryology from sexually produced human life.⁽¹¹⁾

"Fertilization" as it is used in this Act, is that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

Section 15. If any one or more provision, section, subsection, sentence, clause, phrase or word of this Act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this Act shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed this Act, and each provision, section, subsection, sentence, clause, phrase, or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.

Section 16.

Chapters and sections 34-23A-3 and 34-23A-5 are stricken at such time as this statute is in effect.⁽¹²⁾

Nothing in this Act shall be construed to repeal by implication or otherwise, any provision not explicitly repealed.

If any section or subsection of this Act is ever temporarily or permanently restrained or enjoined by judicial order, the previously enforced and upheld provisions of 34-23A and 22-17 shall be enforced; provided however, that if such temporary or permanent restraining order or injunction is ever stayed or dissolved, or otherwise ceases to have effect, all provisions of this Act that are not restrained shall have full force and effect.

Nothing in this Act providing for exemptions from criminal prosecution for medical treatments resulting in the death of a human being shall be construed as a determination that any exempted acts are in fact legal acts or that such acts are not subject to all civil remedies normally open to a decedent's survivors.⁽¹³⁾

If judicial review reveals any conflict between this bill and any other statutes, the other statutes shall be interpreted in a manner most conforming to the factual the findings of this bill, if that is not possible, stricken. The legislature hereby declares that it would have included in this Act any provisions necessary to bring the law into conformity with the findings of this Act and to remove legal approval for any act that causes the death of an unborn human being while providing exemptions from legal prosecution for medical treatments as provided for in Section 9.

In the event that any portion of this act is enjoined and subsequently upheld, the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four (4) years thereafter.⁽¹⁴⁾

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NOTES

1. This definition confirms that fertilization, as defined by penetration of the zona pellucida (see definition), always results in the creation of a human being. The second sentence, which could be stricken, addresses additional times at which a human life can begin, as a result of natural or artificial cloning, or through other artificial techniques that are or may be developed.

2. Section 3 specifically would be beneficial to constitutional issues being raised by Harold Cassidy in a series of court challenges premised on the fact that this because of this right to relationship women may not place a child for adoption prior to birth, based on the premise that only after birth can she know what she is truly giving up. The same thinking applied to abortion suggests that women can not validly give consent to destroy the relationship with their unborn child through abortion. Cassidy asked for this to be included in S.D.

3. This can be asserted under Roe and Casey's affirmation that the comparative mortality rate determines when the State has a compelling interest in regulating abortion to protect maternal health. See Reardon DC, Strahan TW, Thorp JM, Shuping MW. Deaths associated with abortion compared to childbirth: a review of new and old data and the medical and legal implications, The Journal of Contemporary Health Law & Policy 2004; 20(2):279-327.

4. Section 5 makes three important, interrelated but distinct findings of facts: (1) abortion has many inherent health risks, (2) there are not yet any proven benefits from abortion, and (3) the known risks outweigh the hoped for benefits.

5. This section establishes a rationale basis for excluding women from criminal prosecution for abortions while also preserving for women the right to sue those who perform or abet abortions.

6. South Dakota's 22-17 encompasses the criminal statute regarding illegal abortions.

7. The exemptions could be narrowed further by omitting "or protect" but the latter is needed to make the exemption broad enough to include abortifacient contraceptives. It could also be narrowed further by requiring a "reasonable medical judgment" rather than the looser "good faith" judgment.

8. This section of South Dakota law includes informed consent law and other regulations of abortions performed by physicians.

9. Most women have multiple risk factors and it with the exception of ectopic pregnancies and a few other life threatening conditions, it is generally impossible to demonstrate benefits from surgeries resulting in the death of the unborn child that exceed the known risks. See. Reardon D. The Duty to Screen: Clinical, Legal and Ethical Implications of Predictive Risk Factors of Post-Abortion Maladjustment The Journal of Contemporary Health Law & Policy 2003 Winter;20(1):33-114

10. It would also be desirable to include liability for Wrongful Death when an abortion is done as a result of medical negligence.

11. We shouldn't define the "unborn human being" as something other than a "human being, " but should include in the definition of human being a description that includes all stages of development. "Unborn" is then treated as an adjective describing a stage of development.

12. This strikes existing statutes specifically defining certain first and second trimester abortions as "legal." Any other statutes describing abortions as legal should be stricken to pull law into conformity that all abortion are illegal but some are not subject to prosecution.

13. Would something like this be sufficient open the door to wrongful death claims?

14. This is one of my favorite parts of this whole bill. It guarantees an immediate impact on the abortion industry by denying them any certainty of protection from liability during the period of any injunction.